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Barbados Supreme Court |
] [Hide Context] [Unreported]
IN THE
SUPREME COURT OF JUDICATURE
HIGH COURT
Civil
Jurisdiction
No. 1970 of 2003
BETWEEN:
IN THE MATTER OF THE ADMINISTRATIVE JUSTICE ACT CAP. 109B
AND IN THE MATTER OF FAIR TRADING
COMMISSION ACT 2000-31
AND IN THE MATTER OF THE UTILITIES REGULATION ACT 2000-30
AND IN THE MATTER OF THE UTILITIES REGULATION (PROCEDURAL) RULES NO.
104 OF 2003
AND IN THE MATTER OF THE TELECOMMUNICATIONS ACT 2001-36
AND IN THE MATTER OF THE TELECOMMUNICATIONS (CONFIDENTIALITY)
REGULATIONS NO. 95 OF 2003
BETWEEN:
CABLE AND WIRELESS (
(Applicant
AND
FAIR TRADING COMMISSION
(First Defendant)
FLOYD PHILLIPS
SOLE COMMISSIONER
(Second Defendant)
SOLE COMMISSIONER
AND
ORGANISATION (BARCRO)
COUNCIL FOR THE DISABLED MR. ALVIN CUMMINS
CARITEL
NON-GOVERNMENTAL ORGANISATIONS
(BANGO)
AUDREY MCKENZIE
(Intervenors)
Before the Honourable Madam Justice Elneth Kentish, Judge of the High
Court.
2003: October 30,
November 7, 11, 12, 13 and
20
Mr. Patterson
Cheltenham Q.C., Mr. Leslie Haynes Q.C., and Mr. Alrick Scott for the
Applicant.
Mr. Roger
Forde and Mrs. Cyralene Benskin-Murray for the First and Second Defendants.
Mr. Barry
Carrington for
Mr. Alvin
Cummins appearing in person
(Intervenor).
Mr. Hallam
Hope appearing on behalf of Caritel (Intervenor).
Mr. Roosevelt
King appearing on behalf
Miss Audrey
McKenzie appearing in person
(Intervenor).
REASONS FOR DECISION
[1] This application is brought under the
provisions of the Administrative Justice Act CAP 109B seeking judicial review
of:
(a) a decision of the first defendant (‘the
Commission’) to designate the second defendant as Sole Commission to preside
over a confidential
hearing of the Commission and
(b) a ruling by the second
defendant made at that Confidential Hearing that the Utilities Regulation
(Procedural) Rules 2003 (‘the Procedural
Rules”) will govern the confidential
hearing to the exclusion of the Telecommunications (Confidentiality)
Regulations (“the Regulations’)
and arises out of the
statutory regulatory framework established by Parliament to regulate the supply of utility services in
[2] There are two issues for
the determination of the Court:
1.
Whether the second defendant in presiding as sole
commissioner over the confidentiality hearing held on
2.
contained in s. 5 of the Fair Trading Commission
3.
Act 2000-31
(“F.T.C.A.”) and s. 6 of the Utilities Regulation Act 2000-30 (“U.R.A.”); and
4. Whether the second defendant erred in
law in ruling that the Procedural Rules will govern the confidentiality hearing
to the exclusion
of the Regulations.
[3] Both issues are of
importance for the general conduct of proceedings before the Commission in
performing its regulatory function
under the F.T.C.A., the U.R.A. and the
Telecommunications Act 2001-36 (“T.A”) together called “the Acts” to a
consideration of
which I will return.
[4] The following relief is sought under the
Originating Notice of Motion filed
a) A declaration that the
first and second defendants in ordering that the Utilities Regulation
(Procedural) Rules S.I. No. 104 of
2003 shall solely govern the confidentiality
hearing to the express exclusion of the Telecommunications (Confidentiality)
Regulations
S.I. No. 95 of 2003 acted in breach of law and statutory duty.
b)
A further declaration that Commissioner Floyd H. Phillips in
presiding solely at the Hearing on the 23rd of October, 2003 acted in
breach of
and in excess of the
jurisdiction
contained at section 5 of the Fair Trading Commission Act 2000-31.
c) An order of Certiorari
quashing forthwith on its removal into the High Court the decision of the first
and second defendants herein
given on the 23rd day of October, 2003 whereby it
was decreed that only the Utilities Regulation (Procedural) Rules 2003, Suit
No. 104 of 2003 will govern the proceedings including the confidentiality proceedings
on this matter.
d) An injunction restraining
the first defendant its servants and/or agents and/or employees and the second
defendant from proceeding
with the confidentiality hearing now set for the 30th
October, 2003 or any adjourned date therefrom and from using solely the
Utilities
Regulation Procedural Rules No. 104 of 2003 to the exclusion of the
Telecommunications (Confidentiality) Regulations No. 95 of 2003.
e) Provision be made for the costs in this
action.
f) Such further or other relief as the
Court deems fit.
[5] The application is supported by an
affidavit of Donald Austin, the Applicant’s President, also filed on
[6] No issue has been raised before
me as to whether or not the decision of the first defendant and the ruling of
the second defendant
set out at paragraph [1] are subject to judicial review
and the application has proceeded on the basis that they are so subject.
[7] In their text “Judicial Review” 2nd
edition Michael Supperstone Q.C. and James Goudie Q.C., at page 3.1 define the
nature of judicial
review as:
“the process by which the High Court
exercises its supervisory jurisdiction over the proceedings and decisions of
inferior courts,
tribunals and other bodies or persons who carry out
quasi-judicial functions or who are charged with the performance of public acts
and duties”
[8] Briefly, this court has power to review
administrative decisions made by inferior courts, tribunals and other
bodies in the performance of public acts
and duties. In this review the proper
function of the court is limited to scrutiny of the process by which the
decision has been reached and
does not
extend to scrutiny of the merits of the decision itself.
[9] According to Supperstone
and Goudie at p. 3.3 there are three grounds upon which administrative action
is subject to control by
judicial review.
They are: first, ‘illegality,’ the decision-maker must understand correctly
the law that regulates his decision making power and
give effect to it; second, ‘irrationality’, namely Wednesbury
unreasonableness; and third, ‘procedural impropriety’. And it is the first of these with which this
application is concerned.
The
Parties
[10] The Applicant is an amalgamated
company under the Companies Act CAP 308 of the Laws of Barbados and is the sole
authorized provider
of telecommunications in
[11] The first defendant is a statutory
corporation established under the F.T.C.A. with regulatory functions under the
Acts.
[12] The second Defendant, an
attorney-at-law is a duly appointed Commissioner of the first defendant and was
the sole commissioner presiding
over the procedural conference #3 and the
Confidentiality hearing held by
the Commission on
[13] The Intervenors are non-governmental
organisations and individuals permitted by the first defendant to participate
in the Application
next referred to for a rate adjustment commenced by the
Applicant.
The
Background
[14] On
an Application for rate
adjustment, under section 16 of the U.R.A..
Thereafter, correspondence passed between the first defendant and the
Applicant in relation to the Applicant’s request for information
and the first
defendant's claim for confidentiality relating to that information.
[15] By letter dated
[16] The first defendant by
letter dated
[17] In response, the
Applicant, by several letters all dated
[18] By letter dated
[19] By letter dated 9 October,
2003 the first Defendant invited the Applicant to attend a Procedural
Conference on Wednesday 15 October
2003 and at this Procedural Conference the
Applicant consented to the confidentiality hearing taking place on 23 October
2003 instead
of 29 October as previously proposed.
[20] As re-scheduled the
confidentiality hearing began on
[21] The application before me has its genesis
in this hearing and this order of the second defendant.
The
Relationship between the Acts
[22] A determination of both
issues demands on one hand a careful examination of the purposes of, and
relationship between, the Acts,
and on the other hand an exercise of statutory
interpretation to ascertain the intention of Parliament from the language used
in
the specific sections of the Acts as well as an interpretation of the
Procedural Rules and the Regulations .
[23] The purpose of the U.R.A.
is stated concisely as an Act to provide for the regulation of utility
services; that of the F.T.C.A. is stated
as an Act to provide for the establishment of a Fair Trading Commission to safeguard
the interests
of consumers, to regulate utility services supplied by service
providers, to monitor and investigate the conduct of service providers
and
business enterprises, to promote and maintain effective competition in the
economy, and for related matters; and that of the
T.A. in so far as relevant is
stated as an Act to make provision for the management and regulation of
telecommunications in Barbados
to ensure inter alia:
(a) ...
(b) the provision of telecommunication
services on a competitive basis allowing the widest possible access to those
services at an affordable
rate, and the prevention of unfair competitive
practices by carriers and service providers in the management of
telecommunications
under this Act, the Fair Trading Commission Act and the
utilities Regulation Act.
(c) ...
(d) ...
[24] The U.R.A. and the
F.T.C.A. share a common purpose, that of,
regulating utility services. The
object of the T. A, to provide
telecommunication services on a competitive basis allowing the widest possible
access to those services at an affordable
rate, is itself embedded in that of
the F.T.C.A. to promote and maintain effective competition in the economy.
[25] That these three Acts are
inter-connected and inter-related is also seen from the commonality of
definitions in the Acts. To illustrate:
the term “Commission” in all three Acts means the Fair Trading Commission
established under the F.T.C.A.; the term
‘Minister’ has the same meaning under
the U.R.A. as under the F.T.C.A.; the term ‘utility service’ has the same
meaning under the
U.R.A. as under the F.T.C.A.; and the definition of ‘utility
service’ both under the U.R.A. and the F.T.C.A. includes domestic and
international telecommunications which are specifically covered by the T.A.;
the term “service provider” has the same meaning under
the U.R.A. as under the
F.T.C.A. Although this term does not
bear the same meaning under the T.A., the definition of ‘utility service’ under
the U.R.A. and the F.T.C.A.
brings the T.A. within their scope.
[26] At another level there is
a very close affinity between the functions of the Commission under the U.R.A.
and its functions under
the F.T.C.A..
The Commission is mandated under s. 3 (1) of the U.R.A. to:
3(1) (a) establish
principles for arriving at the rates to be charged
(b) set
the maximum rates to be charged;
(c) monitor
the rates charged to ensure compliance;
(d) determine
the standards of service applicable;
(e) monitor
the standards of service supplied to ensure
compliance;
(f) carry
out periodic reviews of the rates and principles
for setting rates and standards of service;
and under s. 3 (3) to
(a) ...
(b) hear and determine complaints by
consumers regarding
billings and the standards of service supplied
[27] Under s. 4 (1) of the
F.T.C.A. the functions of the Commission are to enforce the U.R.A. and any laws
relating to consumer protection
and fair competition which the Commission has
to administer. In carrying out these
functions the Commission must also perform seven functions identical to those
assigned to the Commission under
s. 3(1) (a)-(f) and s. 3 (3)(b) of the U.R.A.
set out above.
[27] Further links between the three Acts are
found in:-
(1) Ss. 8(2), 38,
and 39(1) of
the T.A. in respect of the charging
of rates. These sections provide:
8 (2) The Commission shall ensure that service
providers provide telecommunications services and charge rates in accordance
with this
Act, the Utilities Regulation
Act and the Fair Trading Commission Act.
38 The rates to be charged by
a service provider are those set in accordance with the provisions of this
part, the Utilities Regulation Act and
the Fair Trading Commission Act.
39(1) The Commission shall
establish a mechanism for the setting of rates to be charged by a provider in
accordance with the provisions
of this Act, the Fair Trading Commission Act and the Utilities Regulation Act;
(2) S.
6 (1) of the T.A., in so far as relevant, mandates the Commission to:
(a) ...
(b) exercise its regulatory
functions in respect of telecommunications in accordance with this Act, the Fair Trading
Commission Act and the Utilities
Regulation Act;
(c) ...; and
(d) establish and administer
mechanisms for the regulation of price in accordance with this Act, the Fair Trading Commissions Act and the Utilities Regulations Act;
(3) S.5 (1) and (3) of the F.T.C.A. which provide:
(1) A panel of 5
Commissioners shall sit to hear and determine matters relating to utility
regulation in accordance with this Act and
the Utilities Regulation Act, 2000.
(2) ...
(3) A decision of the panel
on a hearing is as valid and binding as if it were made by the Commission;
(4) S. 6 (1) of the U.R.A. which provides that the panel of Commissioners referred to
in section 5 of the F.T.C.A. shall sit to hear and determine complaints by
consumers
about billings and standards of service; applications by service
providers for increases in rates and other matters relating to
utility
regulations; and
(5) in s. 6 (2) of the U.R.A. which is identical in terms to s. 5(3)
of the F.T.C.A. set out above.
[29] Clearly demonstrated by
the foregoing examination is the intention of Parliament to put in place a
comprehensive regulatory framework
(a) generally, in relation to
the provision in Barbados of utility services defined in the U.R.A. and the
F.T.C.A. (as amended) as the
supply or distribution of electricity, water,
sewerage services, domestic and international telecommunication services and
natural
gas, and
(b) specifically, in relation
to the telecommunications market to facilitate the full liberalisation thereof
on a competitive basis.
[30] In so far, then, as these
Acts deal with the same subject matter and use a similar approach to that
subject matter they are to be
regarded in law as “Acts in pari materia”. (See
Halsbury’s Laws of England, 4th edition at para 1220 and Oliver Aghworth (Holdings) Limited v Ballard (Kent) Ltd 1997 2 ALL ER
791 at 808 where Laws LJ treated the Landlord and Tenant Act 1730 and the
Distress for Rent Act 1731 as a single code).
[31] Accordingly, these Acts
must be read and construed together as forming a code and as explanatory of one
another with respect to
common subject matter.
[32] The Procedural Rules and
the Regulations earlier referred to at para [1] were made under the U.R.A. and
the T.A. respectively. No rules have
been made under the F.T.C.A. for the simple reason that Rule 3 of the
Procedural Rules provides that [they] “apply
to all proceedings of the
Commission under the U.R.A. and the F.T.C.A.”
[33] It follows, therefore,
that the Procedural Rules and the Regulations (which will be further considered
in dealing with Issue I and
Issue II) must also be read and construed with
their parent legislation as forming part of a code or system regulating the
provision
of utility services and the liberalisation of the telecommunications
market in
[34] Counsel for the Applicant
and for the defendants agree this is common ground.
General Interpretive Criteria
[35] As stated earlier both
issues demand an exercise of statutory interpretation. However, as the same interpretative criteria
may not be applicable to each issue, it is appropriate to deal with the
specific interpretive
criteria relevant to each issue under the respective
issues while indicating at this stage
general interpretive criteria that may be prayed in aid to determine the
intention of Parliament from the language used in the sections
of the Acts and
the Procedural Rules and the Regulations which fall for construction in this
application.
[36] The learned author F.A.R.
Bennion in the leading work on statutory interpretation called “Statutory Interpretation” (4th edition)
condemns the thinking that there ever were just three “rules” of statutory
interpretation - the literal, golden and
mischief rules. Stating that there are many other
considerations he bemoans the fact that
“despite the
years that have passed since the first edition of [his] work pointed out that the
truth of the matter, writers of students
text books still trot out the three so-called ‘rules’ as if
they were the whole story” (p. 468-469)
[37] In this view, Bennion is
supported by the observations of Lord Hoffman in the case of Macniven (HM Inspector of Taxes) v
Westmoreland Investments Ltd [2001] UKHL 6; [2001] 1 ALL ER 865 at 874 [29] that:
“There is ultimately only one principle of
construction, namely to ascertain what Parliament meant by using the language
of the
statute. All other ‘principles
of construction’ can be no more than guides which past judges put forward, some
more insightful than others,
to assist in the task of interpretation.”
[38] A fundamental rule of
statutory interpretation is the plain meaning rule, namely that where the legal
meaning is plain it must be
followed.
In Barnard v Gorman [1941] 3 ALL
ER 45 at 48D Viscount Simon L.C. commented on the duty of judges in
interpreting statutes thus:
“Our duty is to take the words as they stand
to give them their true construction, having regard to the language of the
whole section,
and as far as relevant, of the whole Act always preferring the
natural meaning of the word involved, but none the less always giving
the word
its appropriate construction according to the context”.
[39] This is succinctly put in
Halsbury’s Laws of England 4th edition Vol 36 para 585 in this way:
“If
there is nothing to modify, nothing to alter, nothing to qualify the
language which a statute contains, the words and sentences must
be construed
in their ordinary and natural meaning.”
[40] It seems, then, that other
principles of statutory interpretation should only be invoked where the words
of the statute are ambiguous.
[41] As statutory
interpretation is also required of subsidiary legislation in the form of the
Procedural Rules and the Regulations it
is important to state the general
interpretive principle that “[delegated legislation] is taken to have the same
general intention
of Parliament, so that the like rules, principles,
presumptions and linguistic cannons apply as in the case of Acts” (see Francis
Bennion “Statutory Interpretation” 4th edition p. 216).
[42] I turn now, to a
consideration of the issues and the rival contentions of the Counsel for
Applicant and the Counsel for the defendants.
[43] At this stage it is
appropriate to point out that the Public Counsel for the Intervenors, Barco and
the Barbados Council for the
Disabled, the individual Intervenors Mr. Alvin
Cummins and Ms Audrey McKenzie and the Intervenors, Caritel and Bango
represented
by Messrs Hallam Hope and Roosevelt King respectively have all
adopted and endorsed the arguments of Counsel for the defendants.
Issue 1: Panel or Sole
Commissioner
[44] As stated this application for judicial review arose directly out
of the confidentiality hearing on
[45] For the Applicant it is
contended that the second defendant had no power to preside as a sole
Commissioner over this hearing. Counsel
for the Applicant submitted that no power was
given by the F.T.C.A., under which the first defendant is established,
to a single Commissioner to sit to hear and determine matters
relating to
utility regulation.
[46] In support of this
submission Counsel for the Applicant relies on s 5 of the F.T.C.A. and s. 6 of U.R.A..
[47] Section 5 of the F.T.C.A.
provides:
5. (1) A panel of 5 Commissioners
shall sit to hear and determine matters relating to utility regulation in
accordance with this Act and
the Utilities Regulation Act, 2000.
(2) Notwithstanding subsection (1) for the purpose of exercising its
jurisdiction the panel shall be constituted in accordance with the
directions
of the Commissioners and may consist of an uneven number of Commissioners such
number being not less than 3.
(3) A decision of the panel on a hearing is as valid and binding as
if it were made by the Commission.
[48] Section 6 of the U.R.A.
provides:
6. (1) The panel of commissioners
referred to in s. 5 of the F.T.C.A. shall sit to hear and determine
(a) ....
(b) ...
(c) any other matter relating to utility
regulation.
6. (2) A decision of the panel is
as valid and binding as it were made by the Commission.
[49] Counsel argues that it is
clear from s. 5 of the F.T.C.A. that only a panel of 5 Commissioners or a panel
comprising not less than
3 Commissioners is authorized to sit to hear and
determine matters relating to utility regulation and to the extent that the
second
Defendant purported to sit alone, he had no jurisdiction to do so.
[50] For the Defendants and the
Intervenors who adopted the arguments of Counsel for the Defendants, it is
contended that:
(i) s. 39 (1) of the U.R.A. in so far as
relevant authorizes the Commission
to make Rules, prescribing the procedure for
the conduct of reviews, hearing of
complaints and other proceedings before the
Commission;
(ii) that Rule 35 (2) of the Procedural Rules made
in pursuance of s.
39 of the U.R.A. authorises the Chairman of the Commission to designate a member of the
Commissioner to preside at a procedural
conference;
(iii) the
confidentiality hearing is in
the nature of a procedural conference
within the meaning of Rule 35(1)
of the Procedural Rules; and
. (iv) the confidentiality hearing not being a
rate adjustment
hearing, a panel of 3 to 5 Commissioners
is not
required to preside over such a hearing.
[51] Accordingly, Counsel for
the Defendants submitted that the second Defendant did have jurisdiction as a
sole Commissioner to preside
over the hearing.
[52] A resolution of these
rival contentions requires an interpretation of both s. 5 of the F.T.C.A. and
s. 6 of the U.R.A. together
with those Procedural Rules which govern a
confidentiality hearing.
[53] First, however, I must
consider another submission of Counsel for the Defendants relating to the
interpretation of subsidiary legislation.
In this regard Counsel contended that while subsidiary legislation must
not be inconsistent with its enabling Act, such legislation
need not be
consistent with other statutes. Counsel argued that since the Procedural Rules
have their origin in s. 39 of the U.R.A.
they cannot conflict with the
provisions of the U.R.A., but they may conflict with the provisions of the
F.T.C.A.
[54] In response to this
submission and argument Counsel for the Applicant cited the case of Reg v Secretary of State for Social
Security Exparte Joint Council for the Welfare of Immigrants [1997] WLR
Vol. 1. 275 at page 293 where Waite L.J. stated
“The principle
is undisputed. Subsidiary legislation
must not only be within the vires of the enabling statute but must also be so
drawn as not to conflict with
statutory rights already enacted by other primary
legislation.”
[55] This submission of Counsel
for the defendants is therefore not correct in law. It is also flawed as it ignores that the
F.T.C.A. and the U.R.A. are statutes in pari materia; that the panel
established by s.
6(1) of the U.R.A. with power to sit hear and determine “any
other matter relating to utility regulation” is the same panel established
by
s. 5 of the F.T.C.A. and that the panel itself has a similar function under the
F.T.C.A. and the U.R.A. with a mandate
to perform that function in accordance with the F.T.C.A. and the U.R.A.
[56] Before I come to construe
s. 5 of the F.T.C.A. and s. 6 of the U.R.A. already set out at paras [47] and
[48] I must deal in some
detail with those provisions of the Procedural Rules
relating to the confidentiality hearing.
[57] Rule 13(1) of the
Procedural Rules grants to any party to a proceeding before the Commission the
right to request confidentiality
in respect of any document filed with the Commission. Under Rule 13 (2) (c) that request must be
filed with the Commission and served on the parties. Provision is made under Rule 13(4) for that
document to be held in confidence by the Commission unless the Commission
decides, with a hearing, that the
document should be placed on the public record. It is this provision which obliges the
Commission to hold a confidential hearing before any decision can be made by
the Commission to place the document on
the public record.
[58] Rule 13 (5) empowers the
Commission to direct that any such hearing be held in the absence of the public
in accordance with Rule
39. But it must
be pointed out that the reference to paragraph “(1)” in Rule 13 (5) appears in
error as there is no reference in Rule
13(1) to a hearing. Counsel on both sides are agreed that the
correct reference should be to paragraph “(4)”.
[59] Provision is made under
Rule 13 (6) and (7) for persons to object to a request for confidentiality by
filing an objection thereto
and serving the objection on all parties at least
two business days before the hearing.
Such an objection must state why the party requires public disclosure of
the document and why such disclosure would be in the public
interest.
[60] Under Rule 13(8), the
Commission, after giving the party claiming confidentiality an opportunity to
reply to the objection, may
order that the document:
(i) be placed on the public record;
(ii) be held in confidence by the Commission; or
(iii) need not be disclosed to
the Commission; or
(iv) order that an abridged
version be placed on the record; or
(v) make any other order that Commission may deem to be in the
public interest.
[61] In considering a request
for confidentiality the Commission is mandated under Rule 13(9) to apply the
criteria set out in paragraph
(1) of Rule 39 and places the burden of
establishing confidentiality on the person claiming confidentiality.
[62] It is Rule 39(1) that
empowers the Commission to hold an oral
hearing or part of an oral hearing
in the absence of the public where the Commission is of the opinion that
(a) the circumstances so warrant;
(b) matters involving public security may be
disclosed; or
(c) trade secrets, financial,
commercial, scientific, technical or personal matters may be disclosed at the hearing
of such a nature
and that the desirability of avoiding disclosure in the
interests of any person affected or in the public interest outweighs the
desirability of adhering to the principle that hearings be open to the public.
[63] Rule 39(2) specifies in
detail the persons who may attend any such oral hearing being limited to
persons testifying before the Commission;
Commission employees and advisers
authorised by the Commission; Counsel for the Commission; representatives of
persons testifying
and for each party to the proceeding; a consultant, to
assist a representative; and such other persons as the Commissions is of
the
opinion should be present, on conditions the Commission considers appropriate.
[64] Every person except for
Commission employees and advisers authorised to attend an oral hearing in the
absence of the public is requested
to file a Declaration and an undertaking in
the form set out in the Schedule. The
form of the Declaration and Undertaking is instructive as it demonstrates the
nature of the confidential hearing and is reproduced
in full:
SCHEDULE
FORM
DECLARATION AND UNDERTAKING
IN THE MATTER OF an application by [insert name of applicant]
1. I am ordinarily resident in
2. I am/am not an employee, officer, director or shareholder of
the party for whom I appear or any other person known by me to be a
participant
at this hearing.
3. I have read/been informed of the Rules of Procedure of the
Fair Trading Commission and the orders of the Commission that relate to
this .
4. understand that any breach of the Commission’s orders could
be the subject of contempt proceedings in the High Court.
5. I will maintain the confidentiality of any information or
evidence presented during that portion of the hearing held in the absence
of
the public and I will not disclose any such information or evidence to any
person who is not entitled to know of it.
6. I will not reproduce in any manner without the prior written
approval of the Commission any information or evidence presented during
that
portion of the hearing held in the absence of the public or, any notes,
transcripts or written submissions
dealing with information received, evidence taken and submissions made
during or in respect of that portion of the hearing.
7. I will personally deliver to the Secretary of the Commission
at the end of the hearing or after the application has been granted
any notes,
transcripts or written submissions made during or in respect of that portion of
the hearing held in the absence of the
public.
Date:……………………………………………..
Signature:………………………………………..
Printed
Name:…………………………………...
Made
by the Commission this 25th day of July, 2003.
Mr.
FRANK KING
Chairman
of the Commission.
[65] Provision is also made for
the marking of evidence and transcripts with respect to the hearing, for these
to be kept separate from
the public record and for access thereto by order of
the Commission only. (R. 39 (5)).
[66] Under Rule 39 (10) all
parties attending a confidentiality hearing are obliged at the end of the
argument phase of the hearing to
return the transcripts, notes, and any other
confidential documents, in a sealed envelope to the Secretary...
Interpretation: The Acts and the Procedural Rules
[67] In approaching this
interpretation I am cognisant of the warning of Viscount Simmons in A.G. v Prince Ernest of Hannover [1957]
1ALL ER 49 at 53 H that:
“... words, and
particularly general words, cannot be read in isolation: their colour and content are derived from
their context. So it is that I conceive
it to be my right and duty to examine every word of a statute in its context,
and I use the word ‘context’
in its widest sense ... its preamble, the existing
state of the law, other statutes in pari materia, and the mischief which I can,
by those and other legitimate means, discern statute was intended to remedy
...”
[68] The authorities show that
the modern approach to the construction of a statute is to ask the question
“What does the
word mean in the context in which we find it here, both in the immediate
context of the [section or] sub-section
in which the word occurs and in the
general context of the Act, having regard to the declared intention of the Act
and the obvious
evil it was designed to remedy?”
per Lord Greene in Re Biddie, Biddie v General Accident
Fire v Life Assurance Corp [1949] 2 ALL
ER 995 at 988 (
[69] The F.T.C.A. and the
U.R.A. are acts in pari materia with commonality of terms and provisions, and
together with the Procedural
Rules constitute a regulatory framework for the provision of utility
services as stated at para. [33].
[70] What did Parliament intend
when it provided
(a) under section 5(1) and
(2) of the F.T.C.A. that a panel of either 5 or not less than 3 Commissioners
shall sit to hear and determine
matters relating to utility regulation in
accordance with the F.T.C.A. and the U.R.A.? and
(b) under s. 6 (c)of the U.R.A. that the panel of Commissioners
referred to in s. 5 of the F.T.C.A. shall sit to hear and determine any other
matter
relating to utility regulation?
[71] First it is clear from the
language used in these sections that Parliament intended
(1) to establish under the
F.T.C.A. a panel of 5 Commissioners to sit hear and determine matters relating
to utility regulation
(2) that the panel shall be
constituted in accordance with the directions of the Commissioners and may
consist of an uneven number of
Commissioners;
(3) that a panel as constituted
by the Commissioners shall not comprise less than 3 Commissioners
(4) that this panel is the
same panel mandated under s. 6(1) of the U.R.A. to sit hear and determine
complaints by consumers, applications
for rate increases and any other matter relating to utility
regulation; and
(5) that any decision made by the panel is binding as if made by
the Commission which as constituted under s. 1(1) of the First Schedule
to the
F.T.C.A. must comprise a total of 7 Commissioners including the Chairman and
Deputy Chairman.
[72] Having regard to the fact
that these Acts share a common purpose of regulating the provision of utility
services, it is clear that
Parliament set out to establish a single entity that
would be responsible for determining all matters relating to utility
regulation.
[73] The words are clear and
unambiguous and can have no other meaning having regard to the purpose of the
F.T.C.A. and the U.R.A. earlier
set out at para [23].
[74] This opinion is fortified
by the non-provision in either the F.T.C.A. or the U.R.A. of any other entity
with such power.
[75] It is clear then that the
panel is the agency through which the Commission fulfills its mandate under s
5(1) of the F.T.C.A. and
s. 6(1) of the U.R.A..
[76] What do the words “sit to hear
and determine” in the context in which they are used in both s. 5(1) of the
F.T.C.A. and s. 6(1)
of the U.R.A. mean?
They can mean no more than that a panel of Commissioners properly
constituted in accordance with s. 5(1) and s. 5(2) of the F.T.C.A.
must meet at
a specifically chosen location and after a hearing make a decision upon matters properly brought
before the panel.
[77] Counsel for the defendants submitted that a panel of
Commissioners is only required to hear or determine substantive matters
being those matters
expressly provided for in s. 6 (1) of the U.R.A.. that is
(a) complaints by consumers
(b) application by service providers for
increases
in
rates and
(c) any other matter relating to regulation.
[78] Counsel’s submission is correct in so far as the
confidentiality hearing is neither a complaint
by a consumer nor an application
for an increase of rates by a service provider. But does a confidentiality hearing fall
within the meaning of s. 6(1)(c) of the U.R.A. “as a matter relating to utility
regulation”?
[79] What does the expression “any other matter
relating to utility regulation“ as used in the F.T.C.A. and the U.R.A.
mean? The expression is not defined in
the dictionary of either Act. It is a wide and all-embracing phrase and the
question is whether it can properly be said from the language used that
Parliament
intended to exclude from the purview of the panel certain matters
relating to utility regulation and, if so, what matters? I do not think that it can be properly so
stated as the words as they stand do not lend themselves to such a
construction. Taking guidance from the
principle enunciated in Halsbury’s Laws
of England referred to at para [39] in the absence of any contrary
intention in the section or in the Acts read together to limit the expression “any other matter relating to
utility regulation” it must on its plain and ordinary meaning be given the
widest interpretation
so as to include any matter which touches and concerns
utility regulation.
[80] Approached in this way a confidential
hearing is a matter relating to utility regulation and in
the language of Counsel for the defendants is a substantive matter. Nonetheless it may arise out of a complaint by
a consumer or in connection with an application for increases in rates.
[81] I therefore reject the
submission of Counsel for the Defendants that a confidentiality hearing is not
a substantive matter within
the meaning of s. 6 of the U.R.A.
Procedural Rules
[82] In interpreting the
Procedural Rules set out above regard
must be had to two principles of statutory interpretation in order to determine
what powers are conferred under s. 39 (1)
(a) of the U.R.A. on the Commission as a rule-making authority to prescribe the
procedure for
the conduct of
reviews, hearings or complaints and other proceedings before the Commission.
[83] The first principle is
that as a subordinate legislative body the Commission cannot exceed its own statutory powers and
limits. If it does so those powers may
be held to be inconsistent with its enabling Act and invalid.
[84] On a proper construction of s. 39(1)(a) of
the U.R.A. it is purely a
power given by Parliament to the
Minister to make rules of procedure
for the conduct of reviews, hearings of complaints and other
proceedings
before the Commission. It does not
confer or impose
any legal right
or duty on the Commission to designate a sole
Commissioner to preside over
matters relating to utility regulation.
[85] I am guided in this
opinion by the distinction drawn by Sir Jack I. H. Jacobs Q.C. between
procedural law and substantive law in
his well- known text “The Fabric of
English Civil Justice (1987) that there is:-
“a
vital and essential dichotomy created between “substance” and “procedure”
between substantive law, the function of which is to
define, create, confer or
impose legal rights and duties and procedural law, the function of which is to
provide machinery, the
manner or the means by which legal rights and duties may
be enforced or recognised by the Courts of law or other recognised or properly
constituted body.”
[86] Bearing in mind this
dichotomy the combined effect of Rule 13(1) (4) (5) and (9) is to confer a
right, upon any person claiming
confidentiality for any document, filed with
the Commission to a confidentiality
hearing either in the presence or absence of the public and at the same time to
impose on that person
the burden of establishing that the document should be
held in confidence.
[87] Accordingly, to the extent
that the Chairman purported to designate a member of the Commission to preside
over the confidentiality
hearing he acted outside the scope of the power given
to it by s. 39(1) of the U.R.A.
[88] The second principle of
statutory interpretation is that formulated by the learned author of Driedger on the Construction of Statutes
3rd edition at p. 185 as the presumption of coherence which is applicable to
both regulations and statutes. Under this principle
“it is presumed
that regulatory provisions are meant to
work together, not only with its own enabling legislation but with other
Acts and other statues as well. In so
far as possible the Courts seek to avoid conflict between statutory and
regulatory provisions and to give effect to both.
Where conflict is unavoidable
the statutory provision prevails.”
[89] Clearly Rule 35(2) of the Procedural Rules
is inconsistent with its enabling Act and the question is whether given the
presumption
of coherence set out at para [ 88] Rule 35(2) can be saved.
[90] Rule 35 (1) empowers the
Commission to direct parties …. to participate in procedural conferences for
the purposes of:
(a) admitting certain facts
or proof of them by affidavit;
(b) permitting the use of
documents by any party;
(c) recommending the procedures to be adopted before the
Commission;
(d) setting the date and place for the commencement of the
hearing; or
(e) deciding any other matter that may aid in the disposing of
the proceeding in a just or expeditious manner.
[91] Properly construed the
matters covered by this rule are purely procedural in the sense that they allow
the Commission to determine
the manner or means by which certain matters may be
dealt with in order to facilitate the proceeding. They are strictly procedural within the
definition of that term as used by Sir Jack I. H. Jacobs.
[92] The designation of a sole
Commissioner under Rule 35(2) provides an easy mechanism to move the hearing
process forward and is entirely
in harmony with the provisions of Rule 35(1).
[93] Limiting the operation of Rule 35(2) to a
procedural conference as defined by Rule 35(1) avoids any conflict between the
Procedural
Rules, the F.T.C.A. and the U.R.A. and accommodates the presumption
that regulatory provisions are meant to work together, not only
with their own
enabling legislation but with other Acts and statutes as well.
[94] Counsel for the defendants
also submitted that the confidentiality hearing may be considered as an
extension of the procedural conference
within Rule 35(1)(b) for the purposes of
permitting the use of documents by any party.
This submission cannot hold. The
purpose of a confidential hearing is to determine the right of a party to have
documents kept off the public record.
Rule 35(1)(b) properly construed addresses an entirely different matter,
that of what documents a party may be permitted to use at
a proceeding.
[95] Counsel for the defendants contended that
a confidentiality hearing may also be considered as an extension of the procedural
conference
within the omnibus provisions of Rule 35(1)(e) as a conference for
the purposes of “deciding any other matter that may aid in the
disposing of the
proceeding in a just or expeditious manner.”
[96] This submission is of no avail to Counsel
as it collides violently with the ejusdem generis rule that wide words
associated with
more limited words in the same text are restricted by the more
limited words to matters of the same limited kind.
[97] Rule
35(1)(e) provides a classical illustration of ejusdem generis rule where the wide general words "deciding
any other matter that may aid in the
disposing of the proceeding…" are restricted by the preceding limited genus of matters or
procedures set out in Rule 35(1)(a) to (e) that
may form part of a procedural conference.
[98] Thus a confidentiality hearing could not
properly fall within either Rule 35(1)(b) or Rule 35(1)(e).
[99] Counsel for the defendants also urged the
court to examine the layout and format of the Procedural Rules and to note in
particular
the headings:
"DOCUMENTS,
FILING, SERVICE;" "PREHEARING PROCEDURES AND CONFERENCES; “ AND
"HEARINGS"
[100] He submitted
that such an examination shows that the confidentiality hearing provided
for under Rule 13(4) falls within the heading – “Documents Filing, Service" and is to be regarded as part of
the "Prehearing Procedures and Conferences" under Rules 31 to 35.
[101] Francis Bennion in his work "Statutory
Interpretation” already referred to observed at p. 638 that the modern view is
that
"the format or layout is an unamendable component of an Act. It forms part of the Act as promulgated by
Parliament, and is not to be disregarded by the interpreter."
[102] Thus, I may look at the format of the
Procedural Rules to assist in the resolution of the doubt as to whether or not
the confidentiality
hearing is merely procedural. I do so, bearing in mind that the Procedural
Rules were not subjected to the same scrutiny and debate, as would a statute.
[103] Looking at the layout and format of the
Procedural Rules referred to above one finds that although the right to a
confidential hearing
falls within Rule 13(4) under the heading “DOCUMENTS, FILING, SERVICE", the
hearing itself by Rule 13(5) and (9) is removed from that heading and then
dealt with not under the heading "Prehearing
Procedures and Conferences" but
under the heading
"Hearings (Rules 36 to 47). If it were intended that a confidentiality
hearing were to be treated as a procedural conference within the heading
"Prehearing
Procedures and Conferences" it was an easy matter to have
so included it.
[104] "The word "hearing" is very
widely defined by the dictionary of the Procedural Rules to mean "a
hearing in any
proceeding before the Commission and includes an oral hearing
and a written hearing".
[105] Its proper meaning can only be gleaned from
the particular context in which the word "hearing" appears in the
Procedural
Rules and from a consideration of all other relevant provisions of
the Procedural Rules. The reference to
an 'oral hearing' in Rule 39(1) must therefore be construed in the context of
the oral hearing provided for in
Rules 36 to 47, and a confidential hearing
which may be an oral hearing falls within these Rules. Thus its location within the heading "Hearings" supports the
construction that it is an hearing strictly so defined and is quite distinct
from a procedural conference.
[106] Counsel for the defendants also argued that
a confidentiality hearing does not fall within the heading “HEARINGS" as the oral hearing referred to in Rule 36 is the
substantive hearing of the Applicant’s Application under s.16 of the U.R.A. for
a rate adjustment. There is nothing in
the words used in Rule 36 to support such a limited
construction of that rule. Indeed this argument fails when one looks at
Part III of the Procedural Rules under the rubric "Rate Review
Application"
where the general procedure for filing an application is dealt
with including the hearing of such an application. Thus, for example,
Rule
62(1) provides that the Commission may convene a conference for the
identification of issues raised by the service provider;
Rule 62(7) provides
that the Commission may at this time determine a preliminary schedule for the
hearing process and set an overall
time limit; Rule 67(3) provides that having
reviewed the intervenors' briefs, the Commission shall prepare a detailed
schedule
for the hearing at least 5 business days before the hearing, setting
out when each intervenor is scheduled to speak and Rule 68
provides that the
Commission shall at the end of deliberations adjourn to prepare its
decision. Clearly these Rules deal with
the hearing of the substantive Application.
[107] Finally, when the provisions of Rule
13(4)(5) and (9) and of Rule 39(2)(3) and (4) to (10) inclusive, already
referred to, as well
as the procedure for an oral hearing laid down in Rules 41
to 45 of the Procedural Rules are closely examined the only proper conclusion
to be drawn is that a confidential hearing is qualitatively different from a
procedural conference.
[108] The Commission itself appears to have
recognised this qualitative difference.
According to the affidavit of Donald Austin, the Applicant's President,
filed on
[109] Both documents entitled
"Confidentiality Hearing" and "Considerations in Assessing
confidentiality" respectively
are re-produced in full:
Confidentiality Hearing
Hearing
Phase Procedure*
1.
Opening
Statements (7 minutes maximum)
2.
Witness(es)
will be sworn
3.
Applicant
will lead evidence
4.
Present
witness(es) for Commission to examine.
5.
Objectors
permitted to cross-examine Applicant's
witness(es).
6.
Applicant
can re-examine witness (es)
7.
Applicant
makes submissions
8.
Objectors
make submission.
9.
Matter
adjourn for Commissions decision.
*See
(Rules 41-45 URA (Procedural) Rules 2003
CONSIDERATIONS
IN ASSESSING CONFIDENTIALITY
The Process of determining confidentiality ultimately
culminates in the classification of the filing as being either a Public Record
or a Confidential Record. The basic
principle underlying the assessment process is to achieve an appropriate
balance between the interest of the general public
in disclosure and the
potential harm resulting from the disclosure of the information.
The determination of confidentiality shall include the
criteria in Rule 39 ("public security, intimate financial commercial
or
personal matters disclosure of which would cause harm outweighing the public
interest benefits of disclosure"), and may
also take account of the
following considerations:
(1) How
would disclosure of the document reasonably be
expected to prejudice the competitive position of any party significantly; impede or diminish the capacity of a party to fulfill existing
contractual obligations or
interference significantly with negotiations
being carried out by a party?
(2) How is
disclosure of the document likely to produce
loss or gain to any person, Group, agency, or
committee?
(3) Is the
Commission able to discharge its responsibilities
under the URA Act without public disclosure
of the document?
(4) Is a
document public or generally available elsewhere,
either before or after the confidentiality of
the document is challenged?
(5) The
Commission will assess and determine claims for confidentiality on a case by
case basis.
A mere conclusionary or generalized allegation cannot
support non-disclosure. It must be shown
by a preponderance of evidence that specific harm would result to the
application and the nature of the harm-to
the extent that the commercial
confidentiality of the document should be maintained.
(6) The Fair
Trading Commission would like to encourage the Applicant that in the interim it
should re-visit the information which it
claims is confidential with a view to
assessing whether some of the
information should not be made available to the
public.
The nature
of the information will be discussed but the confidential document will not be
disseminated to participants.
[110] On any assessment of these documents it is
clear that the Commission appreciated that the confidentiality hearing upon
which it
was about to embark was of a nature and kind materially different from
a procedural conference within the meaning of Rule 35(1).
[111] The Commission, therefore, fell into error
when it designated the second defendant to preside over the confidentiality
hearing as
it ought properly to have been presided over by a panel of
Commissioners.
[112] I therefore reject the submissions of
Counsel for the Defendant that the confidentiality hearing may be considered a
procedural
conference. That being so, I
find that the confidentiality hearing held on 23 October, 2003 is null and void
on the ground of illegality, the
second defendant having no power to preside
over that hearing as a sole Commissioner.
[113] Accordingly an order for certiorari is made
in favour of the Applicant quashing the proceedings on
[114] That finding is sufficient to dispose of the
Application. However the issue whether
the Regulations or the Procedural Rules shall govern such an hearing is
important in the context of proceedings
before the Commission generally and for
this reason warrants consideration.
Issue
2: Regulations or Procedural Rules
[115] This issue is somewhat narrower than Issue 1
in that it essentially involves statutory interpretation of Rule 3 of the Procedural
Rules which provides that these Rules apply to all proceedings under the U.R.A.
and the F.T.C.A.
[116] Counsel for the defendants submitted that it
is trite law that a court must give effect to clear and unambiguous words of an
enactment. He contends that Rule 3 is
clear, unambiguous and consistent with its enabling legislation. The Rule, he contends is not prefaced by any
such words as “subject to the Confidentiality Regulations” or any similar
restrictive
words.
[117] He submitted that on filing an Application
under section 16 of the U.R.A. the Applicant invoked the provisions of the
U.R.A. in
its entirety.
[118] Accordingly, it is his submission that the
Procedural Rules which govern the confidentiality hearing and the decision of
the Sole
Commissioner to dis-apply the
Regulations was correct.
[119] On
the other hand,
Counsel for the Applicant
submits that the
Regulations are sector specific and specific to confidentiality in the
context of a regulatory proceeding, whilst the Procedural
Rules are general and
wide ranging encompassing several procedural matters.
[120] He relied on the principle generalia
specialibus non-derogant, the rule of statutory interpretation which states
that where general
and special legislation deal with a specific subject, the
presumption is that the general must give way to the particular and cites
the
case of Seward v The Vera Cruz [1881 – 5] All ER 217
at 220 where the principles enunciated by The Earl of Selbourne L.C. is –
“If anything be certain it is that where there are
general words in the later Act capable of reasonable and sensible application
without extending them to subjects specially dealt with by earlier legislation,
you are not to hold that earlier and special legislation
indirectly ‘repealed’,
altered or derogated from merely by force of such general words, without any
indication of a particular
intention to do so.”
[121] Counsel for the Applicant then submitted
that since a claim for confidentiality in an hearing involving telecommunications
service
is governed by sector specific and earlier regulations (the
Regulations) the Procedural Rules dealing with confidentiality would
not be
applicable.
[122] It is conceded by Counsel for the Applicant
and Counsel for the defendants that in so far as the Procedural Rules and the
Regulations
both deal with claims for confidentiality, they are mutually
exclusive and apply in separate and distinct circumstances.
[123] The burden of the argument by Counsel for
the Applicant is that in the context of the telecommunications service in
Barbados moving
for the first time from a monopoly to a fully liberalized
competitive market, the Regulations were intended specifically to protect
the
Applicant from having to make available confidential information (as defined by
the Regulations) which might be used to the
disadvantage of the Applicant by
its new competitors.
[124] In the course of the hearing, Counsel for
the Applicant asked a very significant question, “If the Confidentiality
Regulations do
not apply to these proceedings [the confidentiality hearing]
when would they apply?
[125] At first glance, it would appear that the
Regulations would have no relevance other than to the Applicant in its capacity
as a telecommunications
service provider.
But an examination of section 7(1) of the T. A. suggests that this in
not correct. It provides:
7(1) the
Minister shall take all reasonable steps to ensure that the information
submitted to him, and every person concerned with the
administration of this
Act in respect of licensees and
applicants for licences granted under this Act is treated confidentially …”
(emphasis supplied).
[126] Accordingly, there are two categories of
persons other than the Applicant, namely persons to whom licences have been
granted and
applicants for licences under the Act, who may claim
confidentiality in respect of information submitted to the Minister and the
Commission (being a person concerned with the administration of the Act). And so all those persons who have been
granted licences under section 10(1) of the T. A. or have applied for such
licences may invoke
the Regulations.
[127] For this reason the argument of Counsel for
the Applicant that the Regulations are sector specific falls to the ground.
[128] Rule 3 of the Procedural Rules is concise,
direct and straightforward:
“These rules apply to
all proceedings under the U.R.A.
and
the F.T.C.A..”
[129] Applying the principle set out at para. [39
] that “if there is nothing to modify, nothing to alter, nothing to qualify the
language
which a statute contains, the words and sentences must be construed in
their ordinary meaning” to Rule 3, I find there is nothing
to modify, alter or
qualify the language used by Parliament and the words used must be construed in
their ordinary and natural
meaning.
[130] There is no doubt or ambiguity in the words
used in Rule 3. If Parliament intended
to qualify the language of the Rule, it would have been a simple matter to do
so using the appropriate qualifying
language.
[131] I therefore hold that on a proper
construction of Rule 3 of the Procedural Rules, the Regulations do not apply to
any proceedings
commenced before the Commission under the U.R.A. or the
F.T.C.A. and uphold the submission of Counsel for the defendants that
Procedural
Rules apply to a confidentiality hearing.
Summary:
[132]
(1)
The confidentiality hearing held on
(2)
An order for certiorari is made in favour of the Applicant
quashing the proceedings of the Commission on
(3)
The Procedural Rules shall apply to a confidentiality
hearing.
(4)
The Applicant and the Defendants shall be at liberty to apply
in relation to the costs of this Application.
Elneth O. Kentish
] [Hide Context]
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